Filed: Feb. 25, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-25-2008 Drakes v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4135 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Drakes v. Atty Gen USA" (2008). 2008 Decisions. Paper 1536. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1536 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-25-2008 Drakes v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4135 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Drakes v. Atty Gen USA" (2008). 2008 Decisions. Paper 1536. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1536 This decision is brought to you for free and open access by the Opinions o..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-25-2008
Drakes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4135
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Drakes v. Atty Gen USA" (2008). 2008 Decisions. Paper 1536.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1536
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-4135
___________
DEON PATRICK DRAKES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A41-929-596)
Immigration Judge: Honorable Grace A. Sease
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
FEBRUARY 12, 2008
Before: SLOVITER, BARRY AND GREENBERG, CIRCUIT JUDGES.
(Opinion filed February 25, 2008)
___________
OPINION
___________
PER CURIAM
Deon Patrick Drakes petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) denying his appeal. The government has filed a motion to
dismiss the petition for lack of jurisdiction. We will grant the government’s motion and
will dismiss in part for lack of jurisdiction, and will otherwise deny the petition.
Drakes, a native and citizen of Guyana, entered the United States in 1988 as a legal
permanent resident. In 2004, Drakes pleaded guilty to attempted criminal possession of a
controlled substance in the third degree with intent to sell. The government instituted
removal proceedings against him for being convicted of a controlled substance offense in
violation of INA § 237(a)(2)(B)(i) and of an aggravated felony in violation of INA §
237(a)(2)(A)(iii). At a hearing before an Immigration Judge (“IJ”), Drakes conceded that
he was not a citizen of the U.S., that he was admitted as a legal permanent resident, and
that he was convicted of attempted criminal possession of crack cocaine with intent to
sell, in violation of New York State Penal Law 220.16(01). (See A.R. 44, 84.) He
challenged his removal by contending that his conviction for an attempt offense could not
constitute an aggravated felony. The IJ disagreed and found that the conviction qualified
as an aggravated felony, that he was removable as charged, and that, because of the
aggravated felony, he did not qualify for cancellation of removal under INA § 240A.
Drakes filed an appeal, but a single member of the Board of Immigration Appeals
(“BIA”) summarily affirmed the IJ’s decision on March 16, 2006. Drakes filed a petition
for review and a motion to stay his removal in the Court of Appeals for the Second
Circuit. The removal proceedings transpired in Pennsylvania, so the Second Circuit
consolidated it with another petition Drakes had filed 1 and transferred them to this Court.
1
Drakes also filed a petition for writ of habeas corpus in the District Court for the
Southern District of New York in the fall of 2005, while his removal proceedings were
pending before the immigration court. It was transferred to the Court of Appeals for the
2
See INA § 242(b)(2). The government filed a motion to dismiss the petition for lack of
jurisdiction because Drakes has been convicted of an aggravated felony.2
Although the government is correct that we lack jurisdiction to review an order of
removal based on an aggravated felony, we nonetheless have jurisdiction to consider
“constitutional claims or questions of law” in a petition for review. See INA §
242(a)(2)(D). Here, Drakes presents several legal arguments: that his conviction does not
qualify as an aggravated felony, that his counsel provided ineffective assistance, and that
he is eligible for cancellation of removal. We have jurisdiction to determine the legal
question of whether Drakes’ conviction qualifies as an aggravated felony. See Tran v.
Gonzales, 414 F.3d 464, 467 (3d Cir. 2005). We examine the question of whether an
offense qualifies as an aggravated felony de novo. See Valansi v. Ashcroft,
278 F.3d
203, 207 (3d Cir. 2002). If Drakes’ conviction qualifies, then he is ineligible for
cancellation of removal. See INA § 240A(a)(3).
Second Circuit as a petition for review in February 2006, and then consolidated and
transferred to this Court. The government filed a motion to dismiss that portion of the
petition for review, and we granted the motion insofar as it dismissed that part. See
Drakes v. Attorney General of the United States, C.A. No. 4135 (order entered on August
17, 2007). The Second Circuit also transferred Drakes’ motion to stay removal, which we
denied on December 7, 2006.
2
The government also moved to dismiss Drakes’ petition for review because it was
not timely filed. In its brief, the government stated that it “will no longer contest
jurisdiction in this case” with respect to whether Drakes’ petition was timely filed. (See
Resp.’s Br. at 3.) We are still obligated to confirm that the petition was timely for our
own jurisdiction. On this record, we are satisfied that the petition was timely filed.
3
We agree with the BIA that Drakes’ conviction qualifies as an aggravated felony.
A state drug conviction may be found to qualify as an aggravated felony under either of
two routes. Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003). Under the “illicit
trafficking in any controlled substance” approach, the offense constitutes an aggravated
felony if it requires “trafficking” and the state deems its commission to be a felony.
Id.
Under the “hypothetical federal felony” approach, an offense is an aggravated felony
when “regardless of categorization [by the state], [it] would be punishable as a felony
under an analogous federal statute.”
Id.
We need not address the first approach because Drakes’ conviction qualifies as a
“hypothetical federal felony.” Using the “hypothetical federal felony” analysis, the court
examines whether a state drug conviction would have been punishable as a felony under
the Controlled Substances Act (“CSA”). See Lopez v. Gonzales, – U.S. –, –,
127 S. Ct.
625, 633 (2006); Gerbier v. Holmes,
280 F.3d 297, 313-15 (3d Cir. 2002). At hearings
before the IJ, Drakes admitted the government’s charge that he was convicted of
“Attempted Criminal Possession of a Controlled Substance in the Third Degree with
Intent to Sell, to wit: Crack Cocaine; in violation of Section 110/220.16 (01) of the New
York State Penal Law,” a Class C felony under N.Y. Penal Law § 110.05(4). (See A.R.
28, 44, 84.) 3 The analogous federal offense punishable under the CSA would be
3
The state’s “Certificate of Disposition Indictment” submitted to DHS reflects that
Drakes was convicted of “Attempted Criminal Possession of a Controlled Substance in
the 3rd Degree, PL 110-220.16 01 CF (Dangerous Drug).” (See A.R. 77.)
4
attempted possession of a controlled substance with intent to distribute, 21 U.S.C.
§§ 841(a), 846, a felony. See Lopez, 127 S. Ct. at 630 n.4, 631 n.7; 21 U.S.C. §
841(b)(1)(C). The CSA proscribes “any person [to] knowingly or intentionally . . .
possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21
U.S.C. § 841(a)(1). The CSA also provides that attempted offenses under section 841 are
subject to “the same penalties as those prescribed by the offense, the commission of
which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. According to the
“hypothetical federal felony” analysis, the conviction qualifies as an aggravated felony,
and Drakes is therefore ineligible for cancellation of removal. See INA § 240A(a)(3).
Finally, we address the claim that Drakes’ attorney rendered ineffective assistance
in his representation of Drakes on the state criminal claims. As the BIA noted, Drakes
raised only a bare-bones claim, and failed to articulate exactly how counsel failed to
adequately represent him. See, e.g., Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
Moreover, as the BIA pointed out, the claim essentially attacks Drakes’ underlying
criminal conviction, and immigration courts lack the authority to “go behind” the criminal
judgment to re-assess guilt or innocence.
For these reasons, we agree with the government that we lack jurisdiction over any
claims barred from review under INA § 242(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(C);
Valansi, 278 F.3d at 207. We grant the government’s motion to dismiss and will dismiss
the petition for review in part. To the extent that the petition for review raises any legal
5
questions over which we retain jurisdiction, the petition will be denied. The
government’s remaining motion to dismiss on timeliness grounds is denied.
6
